Barney v. Goff

Chipman, Ch. J. delivered the opinion of the Court. It is true, as remarked by the counsel for the defendant, that the Court will not easily be induced to grant a new trial, in a case where they can see clearly that justice has been done, merely because the Judges, on the trial, made a mistake in point of law : but it ought to be added, unless the mistake be of such a nature, and pf such a magnitude, as that it ought to be corrected for the sake of general justice. The mistake may be of such a nature as to render it impossible for the Court to ascertain whether justice has been done or not. For instance, the admission of illegal evidence may have induced a surprise on the party against whom the verdict was found, so that he could not have had a fair opportunity to produce evidence, on his part, to contradict or explain the testimony which had been admitted against him by such mistake: where that is the [307] case the Court will grant a new trial, without inquiring whether such evidence existed or not, or how far it might have been suffi-, ■dent if produced; for this would be for the Court to assume the province of the Jury, and to try the merits of the cause on a motion for a new trial. In this case the Court are satisfied on both grounds taken by the plaintiff’s counsel. This notice comports neither with the letter nor the spirit of the statute. The statute (the 98th Section of the Judiciary act) permits the defendant to plead the general issue in any action according to the nature of the case; and under such general issue to give any special matter in evidence in his defence or justification, as the nature of the action maybe, “ the defendant giving notice in writing with the plea, of the special matter or matters, on which he or she shall rely in his or her defence or justification. And no special matter shall be given or allowed in evidence, except such as shall be particularly mentioned in jsifch notice in writing as aforesaid.” The notice in this case, as has been well observed, is not of any matter of defence or justification whatever, but of a general conclusion : and, it may be added, without premises. Not a fact is therein suggested, from which such conclusion is intended to be drawn. The defendants might as well have said, we will prove enough on trial to obtain a verdict, and call it a notice under the statute. How strict or how loose the Court might have formerly been, we cannot say; but the present Judges have refused to permit the defendants to go into proof of any matter not particularly mentioned in the notice; and have held that such notice under the statute, must contain the substance of a special plea in bar, and that the facts relied on must be as particularly set forth, though the same technical precision is not required. It was so decided in the case Bowdish against Peckham (ante page 144.) The statute dispenses with the form only, not the substance of a plea in bar. The notice, as it is called, in this case, the plaintiff could not know — there was no hint given him of the facts which the defendants intended to prove on the trial. — It cannot therefore be supposed that the plaintiff could come prepared to meet the evidence produced by the defendants on the trial. The notice seems to have been framed for the purpose of surprising the plaintiff. After the trial has been had, how is it possible for the Court to discern whether justice has [308] been done in tile case ?- A fair opportunity has not been given to the plaintiff — it is impossible therefore for the Court to know what is the justice of the case. But, under any notice, the evidence which was offered on the part of the defendants ought not to have been admitted. Every regular judgment, while remaining in force, is conclusive as to every thing which might have been pleaded or given in evidence in defence, or to lessen the damages, except that which may be pleaded in offset. And this principle applies as well to judgments rendered on confession, as to those rendered in adversary suits 5 otherwise no judgments are final — no litigation could ever be closed. Now there was no one matter in the defendants’ statement, on trial, except the last payment, but what might and ought to have been included and settled in some one of the judgments which had been rendered in favour of the plaintiff. The amount of payments the law presumes to have been settled from time to time, and each judgment to have been rendered and confessed for the sum actually due. No fraud, imposition or mistake is suggested which might be a ground of relief even in a Court of Equity. If the defendants had paid any sum which from mistake had not been applied, perhaps it might have been pleaded by way of offset: but such proof could not be admitted under a statute notice. — It is not matter either of defence or justification. A plea in offset is in the nature of an adverse suit, and must be pleaded in the manner pointed out by the 92d Section of the Judiciary Act. New trial granted.